NEWS & ANALYSIS

UCT lets the Fallists go free

Sara Gon writes on the amnesty granted by council to those involved in picture and art burning in 2016

The highest decision-making body of the University of Cape Town (UCT) took the decision to award amnesty to eight students who had been found guilty of acts of serious misconduct in 2016.

Chancellor Sipho Pityana advised the campus community of this in his ‘From the Chair’s Desk’ on 3 July.

The decision was taken in the interests of “restorative” justice on the recommendation of the Institutional Reconciliation and Transformation Commission (ITRC). The acts of misconduct were “in respect of the events on campus of 16 February 2016”, offence “for which the students were found guilty before the University Student Disciplinary Tribunal”.

The “amnesty” involves “the expunging from the students’ academic record of all information about the offences related to the Shackville protests and related matters so that they may graduate, pursue academic studies elsewhere, and satisfy a future declaration that they are ‘fit and proper persons’ so as to be able to pursue future careers and opportunities”.

The misconduct included some or all of:

Transporting containers of petrol and tyres onto Upper Campus;

Defacing, removing and burning paintings from three buildings;

Illegally entering residences, threatening staff and stealing food;

Barricading roads;

Occupying the administration and preventing staff from working;

Committing assault;

Defacing university property with graffiti.

Let’s remember how UCT got to this point. UCT was beset by demonstrations, protests, destruction of property, threats, assaults, disruption of classes and blockading of access on and off for three years from March 2015.

It was in March 2015 that the infamous Chumani Maxwele threw faeces onto the statue of Cecil John Rhodes. The ensuing protests succeeded in having the statue removed.

In February 2016, the “Shackville” protests occurred. The alleged reason for the protests was the shortage of student housing.

UCT was granted an interdict against those who supported unlawful conduct during these protests. Amongst the named respondents were Maxwele and one Masixole Mlandu.

In October 2016, unlawful protests erupted just before the year-end exams under the banner of #FeesMustFall. Again, UCT obtained an urgent interdict against the leadership’s unlawful behaviour.

The High Court granted UCT an interim interdict against five student leaders, including Mlandu and Maxwele.

The decision was taken on appeal to the Supreme Court of Appeal (SCA), which agreed with the High Court that the protests were "harmful and unlawful".

The students then appealed to the Constitutional Court. The ConCourt upheld the SCA’s decision in April 2017.

The three highest courts in the land deemed the behaviour of the respondents harmful and unlawful, yet the Council saw fit to grant amnesty essentially to anarchists.

Ahead of a mass meeting organised by #FeesMustFall activists on 6 September 2017, former Vice-Chancellor Dr. Max Price vowed that the university would expel students who disrupted academic activity during the following day’s planned campus shutdown.

A journalist put it to Price that UCT hadn’t taken any disciplinary action over the disruption of classes since protests began in 2015. Price said the response would be different if the planned shutdown continued.

“One key difference is that we can’t afford to stop the academic year‚ we don’t have the flexibility that we’ve had in previous years. The risk is that people who are already financially disadvantaged are potentially more disadvantaged in that situation.”

He went on: “Secondly‚ we think we’ve acted with enormous goodwill since the last set of protests. We’ve had an agreement which was signed and which we’ve stuck to.”

On 25 October 2016, students disrupted tests and lectures. The next day UCT suspended all academic activity following "extensive disruptions and barricades".

"[Classes have been cancelled], primarily for the safety of students and staff and to avoid exposing staff and students to unacceptable disruptive behavior,” the university said at the time.

Still failing to call anarchy by its name, Price and his two deputies were involved in secret off-campus negotiations with a group calling itself “SRC Candidates/Shackville TRC”.

Price et al, having suffered the disruption of exams in 2015, didn’t want a repeat in 2016.

So negotiations took place with a group representing no one but themselves, with no authority, and who had been expelled and criminally charged over the Shackville protests.

The first item agreed was the granting of clemency to the eight negotiators on condition that:

-They formally acknowledge wrongdoing and commit to no repetition;

-If in breach after 6 November 2016, they will be charged;

-If there are disruptions of classes etc the university “may approach the mediators to request revoking clemency”;

-A list of internal and external (criminal) charges against students up to 6 November be sent to the to-be-established ITRC, presumably for the joint forum to decide what should or shouldn’t be done with all students facing disciplinary action, and

-There be a moratorium on disciplinary hearings pending the ITRC’s decision “in the spirit of restorative justice”.

So the highest administrative office holders agreed to bind a range of university organs to an unlawful agreement.

The only possible reason to enter into the agreement was because the eight students had control over the protests. The FaceBook page of ShackvilleTRC after the signing is instructive:

“We will allow exams at the University of Cape Town to continue without disruption, on the basis of the following principles that we have reached in our agreement. In our view, exams are not a metric for the continuation or halting of our struggle, rather they are a concessions (sic) we are willing to concede to gain institutional victories. The notion that this is a peace agreement needs to be dispelled immediatly (sic), rather a give and take has been conducted by both parties based on the importance of resolving after 8 weeks of intense protests.”

Mlandu had been expelled and faced criminal charges. The State didn’t want him to be granted bail when he was charged for a third time. Price supported Mlandu's release from custody. He was granted bail.

Price said were a few factors, but “a key development was when Masixole got arrested for breaking into a building and intimidating staff. …He was not granted bail and was transferred to Pollsmoor. The SRC team said they could not continue to negotiate while he was in jail, so we didn’t oppose bail.”

Having succumbed to their demands, Price expected the students to return to the negotiations, but they didn’t. When negotiations did resume, UCT asked for a guarantee of no disruptions. The student negotiators couldn’t get that mandate.

Mlandu was one of the signatories, but he should not have been eligible for clemency by the Council. He breached the agreement after 6 November 2016 because of his participation in the disruptions that occurred in October 2017. The same applies to any students who were granted amnesty and who behaved similarly. We don’t know because we don’t know who they are.

The ITRC-Steering Committee first heard the applications for clemency in March 2018 in camera, contrary to its own undertakings that they be held in public.

On 1 April 2018, the IRTC released its first recommendation that all applicants be granted full amnesty and, where applicable, be allowed to graduate.

The IRTC was “satisfied that the incidents were acts associated with their objective of raising awareness of the [students’] dissatisfaction … with the institutional culture at UCT which they perceived to be racist”.

It also was “satisfied that the applicants have made a full disclosure of all relevant facts and that individually they have acknowledged and taken responsibility for their actions and the incidents and events that unfolded between 2015 and 2017 at the University”.

They mention the students’ “pain and suffering”, and “the loss of academic years and opportunities through their expulsions, rustications and exclusions from the University, as well as the financial loss incurred”. Finally, the ITRC “believes that the students are fully aware of the consequences of their actions and have fully paid their dues”.

Is this hand-wringing, politically correct dross the basis on which the Council supported clemency? None of the reasons for the protests justified criminal activity. If bringing a container of petrol and three tyres on to campus isn’t a cynical indication of criminal intent, rather than political naïveté, then what is?

‘Restorative’ justice’s purpose is to move the focus to repairing the harm that has been committed against the victim/s and community. Is this what the IRTC and Council even tried to achieve?

The agreement was negotiated by malcontents who controlled the protests and then realised that their criminal tactics had collapsed their futures.

Sara Gon is a Policy Fellow at the IRR, a think tank that promotes economic and political liberty. If you agree with what you have just read then click here or SMS your name to 32823.